People v. Wear

• Court: Appellate Court of Illinois
• Decided: January 19, 2007
• Docket: 4-06-0353 Rel
• Status: Published

Opinion

NO. 4-06-0353 Filed 1/19/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Greene County ROBERT W. WEAR ) No. 06DT1 Defendant-Appellee. ) ) Honorable ) James W. Day, ) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

Defendant, Robert W. Wear, moved for reconsideration of

an order in which the trial court denied his motion to rescind

the summary suspension of his driver's license and his motion to

suppress evidence and quash his arrest for driving under the

influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2004)).

The court granted the motion for reconsideration, and the State

appeals.

Because the State nol-prossed the DUI case after the

granting of the motion for reconsideration, we dismiss the

portion of this appeal pertaining to the suppression of evidence

and quashing of the arrest (an interlocutory ruling that vanished

with the criminal case). As for the rescission of the summary

suspension, case law deems that ruling to have occurred in a

civil proceeding separate and distinct from the DUI case; there-

fore, the nolle prosequi had no effect on that ruling, which is appealable as a final judgment. In reliance on the doctrine of

hot pursuit, we reverse the trial court’s rescission of the

summary suspension of defendant’s driver license.

I. BACKGROUND

The charging instrument was a citation and complaint,

i.e., a traffic ticket, alleging that defendant committed the DUI

in White Hall on January 2, 2006, at 12:52 a.m. On that date,

the arresting police officer, Christopher Dawdy, served upon

defendant a notice of the summary suspension of his driver's

license for refusing to submit to a chemical test. See 625 ILCS

5/11-501.1(f) (West 2004). The DUI case was docketed as People

v. Wear, case No. 06-DT-1. A receipt shows that on January 3,

2006, defendant posted bond in the amount of $100.

On January 20, 2006, defendant filed a motion to

rescind the summary suspension. The grounds of the motion were

twofold: (1) he "was not properly placed under arrest for

[DUI,]" and (2) Dawdy lacked reasonable grounds to believe he had

been driving, or in actual physical control of, a motor vehicle

on a public highway while under the influence of alcohol or

drugs.

On January 24, 2006, defendant filed a motion to

suppress evidence and quash his arrest on the following grounds:

"6. The arrest herein occurred as a

result of a warrantless, nonconsensual entry

- 2 - into the residence at 303 Fulton Street,

White Hall, Illinois[,] by the arresting

officer, without probable cause to arrest and

without the presence of any circumstances to

excuse the requirement of probable cause or a

warrant to enter the residence ***.

7. As a result of the arresting offi-

cer's unlawful, warrantless entry into the

residence, the officer made certain observa-

tions of the [d]efendant and had certain

conversations with the [d]efendant inside the

residence, and subsequently outside the resi-

dence, which the defendant anticipates will

be used against him at trial."

On February 10 and 17, 2006, the trial court held an

evidentiary hearing on defendant’s two motions. Defendant called

Dawdy, who testified that on January 2, 2006, at 12:52 a.m., he

was driving his squad car west on West Lincoln Street, where the

speed limit was 30 miles per hour, when an eastbound white

Cadillac traveling fast--"at least 40 [miles per hour]"--swerved

toward him, forcing him to pull off to the shoulder of the street

to avert a head-on collision. Dawdy turned around and pursued

the Cadillac, which crossed Main Street and continued east on

East Lincoln Street, still swerving from side to side. When the

- 3 - Cadillac turned south onto Bates Avenue without using a turn

signal, Dawdy (by then, no more than a car’s length behind)

turned on the flashing red and blue lights on the roof of his

squad car. He followed the Cadillac five or six more blocks.

Bates Avenue became Israel Street. Continuing south down Israel

Street, the Cadillac coasted through an intersection, disobeying

a stop sign. It stopped at the next stop sign and turned east

onto East Carlinville Street. Then it turned into the driveway

of a house at the intersection of East Carlinville and Fulton

Streets. Dawdy pulled in behind the Cadillac and got out of his

squad car at the same time defendant got out of the Cadillac.

Dawdy testified that he ordered defendant to get back

into the car but defendant ignored him and began walking toward

the house, staggering, swaying, and crossing his feet. Dawdy

followed him to the house, ordering him over and over again to

get back in his car, but defendant kept on walking without so

much as acknowledging Dawdy’s presence. A woman opened the door

of the house and asked what was going on. "I told her that I had

been following [defendant] down Bates [Avenue] with my lights

on[] and he wouldn’t pull over." Defendant stepped into the

threshold, stood beside the woman, and, for the first time, spoke

to Dawdy, who was standing less than a foot away, on the porch:

defendant told him, "['I] made it home.[']" Dawdy smelled

alcohol on his breath. Defendant then retreated into the house,

- 4 - and without asking for permission, Dawdy followed him inside,

demanding his identification--a demand that defendant refused

because, as he insisted, he had "made it home." Dawdy asked

defendant where he had come from; "Hillview Tavern," defendant

replied. Dawdy twice asked him to come outside and take a field

sobriety test; he refused. "[Defendant] stated to me that he

didn’t want to do field sobriety, that he’s done it in the past

and it hasn’t helped him." At that point, Dawdy decided to place

defendant under arrest. He handcuffed him and took him outside.

In the squad car, Dawdy asked him to take a preliminary breath

test; defendant refused. Dawdy took him to the Greene County

sheriff’s department, which had an officer certified to adminis-

ter a Breathalyzer test. Warned by Dawdy of the consequence of

refusal, defendant refused to take a Breathalyzer test, resulting

in the summary suspension of his driver’s license for six months.

Defendant also called the woman who tended bar at

Hillview Tavern the evening of January 1, 2006, as well as two of

the men with whom he played billiards there that evening.

According to them, defendant did not appear to be drunk while he

was in their presence from 8:30 to 11:30 p.m., and his speech and

balance were unimpaired.

Patricia Foiles testified that the house on Fulton

Street was her residence and defendant was her boyfriend. When

he pulled into her driveway after midnight on January 2, 2006,

- 5 - she was expecting him to stay overnight, as he customarily did.

In her opinion, he displayed no symptoms of intoxication; he was

walking and talking just fine.

Defendant testified he remembered drinking only three

beers during his three-hour stay at the tavern, and he knew his

faculties were unimpaired because, at the pool table, he was at

the top of his game. He denied drinking before he went to the

tavern or after he left. He was weaving on the road not because

of intoxication but to avoid potholes and manhole covers, which

might have damaged his old and fragile Cadillac. The Cadillac

had a narrow rear window, and the first time he noticed the

flashing lights of a squad car behind him was at the intersection

of Israel Street and East Carlinville Street. Because (to his

knowledge) he had done nothing wrong, he assumed the squad car

was on some errand other than pulling him over. When he turned

onto East Carlinville Street, he expected the squad car to keep

going. His girlfriend’s house was only "a short block" away from

that intersection. He was unaware the squad car pulled into the

driveway behind him. In fact, he was oblivious to Dawdy’s

presence until he entered the house and, sensing someone behind

him, turned around and saw him standing there. He admitted

refusing to take a Breathalyzer test.

Initially, on February 24, 2006, the trial court denied

the motions to rescind the summary suspension and to suppress

- 6 - evidence and quash the arrest. Believing Dawdy’s testimony over

defendant’s, the court found that "the arrest [of defendant]

commenced in a public place" and that under United States v.

Santana, 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 305, 96 S. Ct.

2406, 2409 (1976), he "could not thwart his lawful arrest by

retreating into his girlfriend's residence."

On March 2, 2006, defendant filed a motion to recon-

sider both rulings. He pointed out that according to Dawdy's own

testimony, Dawdy did not form an intent to arrest defendant until

after he followed defendant into the house; thus, the arrest was

not "set in motion in a public place" (Santana, 427 U.S. at 43,

49 L. Ed. 2d at 306, 96 S. Ct. at 2410). For that reason,

defendant argued, Santana was inapplicable. The court evidently

agreed with this argument, for on April 5, 2006, it made the

following docket entry: "After considering the arguments of

counsel at the hearing on the [m]otion to [r]econsider, the court

grants the [m]otion to [r]econsider [its] [r]uling. Petition to

[r]escind [s]tatutory [s]ummary [s]uspension is granted[,] and

the [m]otion to [q]uash [a]rrest is granted."

When the trial court granted defendant's motion for

reconsideration, the circuit clerk completed and signed a notice

to the Secretary of State, as required by section 2-118.1 of the

Illinois Vehicle Code (625 ILCS 5/2-118.1 (West 2004)). The form

states that "[u]pon the conclusion of the hearing, the [c]ircuit

- 7 - [c]ourt found in favor of [defendant]" and rescinded the summary

suspension of driving privileges because "[n]o [r]easonable

[g]rounds" existed for the suspension.

On April 10, 2006, the trial court held a previously

scheduled pretrial hearing in case Nos. 06-DT-1 and 06-TR-9. (In

the latter case, defendant was charged with failing to use a turn

signal.) The transcript of the hearing consists of one page,

which we quote in full:

"THE COURT: What do you have next, Mr.

Goetten [(State's Attorney)]?

MR. GOETTEN: Judge, this is People of

the State of Illinois vs. Robert Wear, [case]

No[s]. 06-DT-1[] [and] 06-TR-9. Your Honor,

you had previously--I believe last week, had

ruled on the [m]otion to [r]econsider in the

[d]efendant's favor. I guess we're here

today to dispose of the matter. I didn't

know, and I'm not sure if Mr. Turpin [(de-

fense counsel)] knows[:] [W]as that as to

[case No.] 06-DT-1 for sure[?] [Case] No.

06-TR-9 was also part of defendant's motion.

THE COURT: No, it was only on [case

No.] 06-DT-1. The court sees no reason to

suppress any evidence on the turn[-]signal

- 8 - charge.

MR. TURPIN: Okay.

MR. GOETTEN: Judge, I believe it's the

defendant's intent just to plead guilty

to--[o]h, I'm sorry. I believe it's the

defendant's intent just to plea[d] guilty to

that improper turn signal and pay the $75

over the counter, Judge.

MR. TURPIN: That is correct, [Y]our

Honor.

THE COURT: That's fine.

(Defendant signs plea of guilty [(presumably,

on the back of the traffic ticket in case No.

06-TR-9).])"

Using a preprinted form, the trial court wrote the

following order (we indicate the filled-in blanks with underlin-

ing):

"CAUSE CALLED FOR:

* * *

X Pretrial Conference.

X Negotiated [p]lea presented and ap-

proved ([s]ee Sentencing)[.] Written plea of

guilty filed.

***

- 9 - X Other. [Case No.] 06[-]DT[-]1--arrest

previously quashed--Defendant guilty to [case

No.] 06[-]TR[-]9.

X Sentencing. ***

Defendant sentenced to

*** X Fine $75 incl[uding]*** costs.

X Other: Bond to apply."

Also on April 10, 2006, the trial court made the

following docket entry: "Cause called for hearing. Defendant

present in person and by Attorney Turpin. Arrest quashed in

[case No.] 06-DT-1. Cause stricken. Defendant enters plea of

guilty to [the charge in case No.] 06-TR-9. Defendant fined

$75.00 total. Bond to apply. Notice given to [d]efendant,

State's Attorney[,] and Attorney Turpin in open court."

On the reverse side of the traffic ticket in case No.

06-DT-1, under the heading "Court Action and Other Orders" and

the subheading "Findings," the circuit clerk placed an X in the

box corresponding to "[n]olle [p]rosequi"; signed the line

reserved for his signature; and, above the words "Date Order

Entered," wrote April 10, 2006.

On April 27, 2006, the State appealed from the order of

April 5, 2006, in which the trial court granted defendant's

- 10 - motion to reconsider its rulings on the petition to rescind the

summary suspension and the motion to suppress evidence and quash

the arrest. This is the appeal before us. On July 27, 2006, the

State filed a certificate of impairment.

II. ANALYSIS

A. Defendant's Motion To Dismiss This Appeal

1. The DUI Case

In People v. Zeigler, 106 Ill. App. 3d 783, 784, 436

N.E.2d 722, 723 (1982), the Second District held that after

nol-prossing a case, the State could not appeal from an earlier

order granting a motion for suppression of evidence therein,

unless the State also appealed from the nolle-prosequi order or

from an order denying a motion to vacate the nolle prosequi. See

also People v. Wolsk, 118 Ill. App. 3d 112, 115, 454 N.E.2d 695,

698 (1983). Defendant argues we should dismiss this appeal

because while the State appeals from the interlocutory order of

April 5, 2006, granting his motion for reconsideration, the State

does not appeal from the nolle-prosequi order; nor did the State

move to vacate that order.

The State does not disagree with Zeigler's holding.

Instead, it disputes the existence of the nolle prosequi in this

case. At page C-3 of the appendix to his motion to dismiss this

appeal, defendant includes a copy of the reverse side of the

traffic ticket, wherein the circuit court certified that the

- 11 - State had nol-prossed the DUI case. In its "Objection to Defen-

dant's Motion To Dismiss," the State submits an affidavit by the

circuit clerk, V. "Tunie" Brannan, stating as follows:

"2. In my capacity as [c]ircuit

[c]lerk[,] I am required to maintain the

records of the court.

3. [A]s a matter of record[-]keeping[,]

each case is required to have a disposition.

4. [O]n April 5, 2006, a docket entry

was entered by the Honorable James W. Day

quashing the arrest and suppressing evidence

in [case No.] 06-DT-1.

5. [M]y understanding of the result of

the quashing of the arrest in [case No.]

06-DT-1 was that [the] same was dismissed by

the court. As a result of that entry[,] I,

V. 'Tunie' Brannan, marked the X by [']Nolle

Prosequi['] (see [e]xhibit [No.] C-3 of the

[a]ppellee's [m]otion to [d]ismiss [the]

[a]ppeal) for the purpose of maintaining

records in my office.

6. [A]t no time did I consult with the

State's Attorney or the [j]udge in making a

determination on this form, [e]xhibit [No.]

- 12 - C-3 of the [a]ppellee's [m]otion to [d]ismiss

[the] [a]ppeal, since this form was for the

purpose of record[-]keeping in my office.

7. *** Exhibit [No.] C-3 of the

[a]ppeal is not an official court ruling or

official court disposition in this matter."

We note that June 2, 2006, the circuit clerk certified the

record--including the complaint and citation, which are listed in

a table of contents prepared by the circuit clerk.

Illinois Supreme Court Rule 612(g) provides that

"insofar as appropriate," Rule 329 (Official Reports Advance

Sheet No. 22 (October 26, 2005), R. 329, eff. January 1, 2006)

shall "apply to criminal appeals." 177 Ill. 2d R. 612(g). Rule

329 provides as follows:

"The record on appeal shall be taken as

true and correct unless shown to be otherwise

and corrected in a manner permitted by this

rule. Material omissions or inaccuracies or

improper authentication may be corrected by

stipulation of the parties or by the trial

court, either before or after the record is

transmitted to the reviewing court, or by the

reviewing court or a judge thereof. Any

- 13 - controversy as to whether the record accu-

rately discloses what occurred in the trial

court shall be submitted to and settled by

that court and the record made to conform to

the truth. If the record is insufficient to

present fully and fairly the questions in-

volved, the requisite portions may be sup-

plied at the cost of the appellant. If nec-

essary, a supplemental record may be certi-

fied and transmitted. The clerk of the cir-

cuit court shall prepare a bound and certi-

fied supplemental record which shall be filed

in the reviewing court upon order issued

pursuant to motion." (Emphasis omitted.)

Official Reports Advance Sheet No. 22 (Octo-

ber 26, 2005), R. 329, eff. January 1, 2006.

Traditionally, "[t]he action of the court [could] be

shown only by the record kept by the clerk. This record [could

not] be impeached by the clerk himself, by the recollection of

the judge, or his want of recollection as alleged in this case,

or by any other evidence." People ex rel. Pirola v. Lyle, 329

Ill. 418, 421, 160 N.E. 742, 743 (1928). As interpreted by the

courts, Rule 329 modified that common-law rule to the extent of

allowing affidavits to supply omissions in the record. Paschen

- 14 - Contractors v. Illinois State Toll Highway Authority, 225 Ill.

App. 3d 930, 935, 590 N.E.2d 539, 542-43 (1992); People v.

Miller, 190 Ill. App. 3d 981, 989, 548 N.E.2d 1, 6 (1989). In

People v. Chitwood, 67 Ill. 2d 443, 448, 367 N.E.2d 1331, 1333

(1977), for example, the defendant told the trial court that he

waived a jury and wished to have a bench trial--but "the waiver

was inadvertently omitted from the record." Rule 329 allowed the

State to amend the record with an affidavit that on a certain

date, in open court, the defendant waived a jury. Chitwood, 67

Ill. 2d at 448, 367 N.E.2d at 1333.

The common-law rule remains in full force, however,

when it comes to contradicting the contents of the record.

Paschen Contractors, 225 Ill. App. 3d at 935, 590 N.E.2d at 542;

People v. Sims, 244 Ill. App. 3d 966, 972-73, 612 N.E.2d 1011,

1019 (1993). Rule 329 contemplates correcting "inaccuracies" in

the record (Official Reports Advance Sheet No. 22 (October 26,

2005), R. 329, eff. January 1, 2006), but one can do so only by

reference to some other part of the record (Hartgraves v. Don

Cartage Co., 63 Ill. 2d 425, 428, 348 N.E.2d 457, 458-59 (1976)).

The supreme court has held:

"Nunc pro tunc orders must be based upon

definite and precise evidence in the record.

[Citation.] The certainty of evidence must be

assured without reliance upon the memory of

- 15 - the judge or any other person, and a nunc pro

tunc order cannot be based upon ex parte

affidavits or testimony." Beck v. Stepp, 144

Ill. 2d 232, 239, 579 N.E.2d 824, 827 (1991).

In Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458,

for example, during a trial, one of the 12 jurors sustained an

injury and, as a consequence, could no longer serve on the jury.

After an off-the-record discussion in chambers, the defendant's

attorney moved, in open court, for a mistrial; the trial court

denied the motion. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at

458. The trial resumed, and the remaining 11 jurors returned a

verdict for the plaintiff. Hartgraves, 63 Ill. 2d at 427-28, 348

N.E.2d at 458. The defendant's attorney filed a posttrial

motion, in which he raised the denial of his motion for a mis-

trial. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. In

opposition to the posttrial motion, the plaintiff's attorney

filed an affidavit to the effect that during the in-chambers

discussion, the defendant's attorney stated he would formally

object, on the record, to proceeding with less than 12 jurors but

the judge should overrule the objection because--off the re-

cord--he was willing to proceed with the trial. Hartgraves, 63

Ill. 2d at 427-28, 348 N.E.2d at 458. The defendant's attorney

filed a counteraffidavit denying he said any such thing.

Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. The judge

- 16 - stated he had a clear recollection of the in-chambers discussion

and the defense counsel had indeed urged him to overrule the

motion for a mistrial because he was willing to proceed without

the twelfth juror. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at

458. Accordingly, the court denied the posttrial motion.

Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458.

The defendant appealed, the appellate court reversed

and remanded, and the supreme court affirmed the appellate court.

Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. The supreme

court held: "[A]ny corrections of or additions to the record

which contradict the clear and unambiguous contents of the record

must be supported by something other than the 'clear memory' of

the trial judge." (Emphasis added.) Hartgraves, 63 Ill. 2d at

432, 348 N.E.2d at 461. That "something other" must be "'some

note or memorandum from the record or quasi records of the court,

or by the judge's minutes, or by the papers in file in the

cause.'" Hartgraves, 63 Ill. 2d at 428, 348 N.E.2d at 458,

quoting Pinkstaff v. Pennsylvania R.R. Co., 20 Ill. 2d 193, 202,

170 N.E.2d 139, 144 (1960).

In his affidavit, the Greene County circuit clerk

claims that the disposition on the back of the citation and

complaint in case No. 06-DT-1 "is not an official court ruling or

official court disposition in this matter." We disagree.

Illinois Supreme Court Rule 552 provides: "A final disposition

- 17 - noted on the reverse side of the 'Complaint' shall be evidence of

the judgment in the case." Official Reports Advance Sheet No. 22

(October 30, 2002), R. 552, eff. September 30, 2002. The back of

the traffic ticket says the case was nol-prossed on April 10,

2006. In a hearing on that date, the State's Attorney told the

trial court: "I guess we're here today to dispose of the mat-

ter." The docket entry for April 10, 2006, says "[c]ause

stricken"--and that the State's Attorney was given "[n]otice" of

this disposition "in open court." The State's Attorney never

moved to vacate the nolle prosequi and never suggested to the

trial court that it misunderstood his intent. Instead, on the

strength of the circuit clerk's affidavit, the State now contends

that--contrary to the "Court Action" in the traffic ticket; and

contrary to the docket entry for April 10, 2006; and contrary to

the State's Attorney's request to "dispose of the matter"--the

case was, in fact, not nol-prossed. This is an impeachment of

the record, not the supplying of an omission. We find that this

case fits within the rule of Hartgraves rather than Chitwood.

The circuit clerk's affidavit is inadmissible, and we deny the

State's motion to add it to the record. Defendant has moved to

dismiss this appeal, and, on the authority of Zeigler, we grant

the motion in part: we dismiss this appeal insomuch as it

challenges the suppression of evidence and quashing of the

arrest, which were an interlocutory ruling in the nol-prossed

- 18 - criminal case.

2. The Summary Suspension

The order from which the State appeals awarded defen-

dant two forms of relief: (1) it suppressed evidence and quashed

the arrest in case No. 06-DT-1, and (2) it rescinded the statu-

tory summary suspension of defendant's driver's license. The

first form of relief is moot; the second still presents a live

issue. "[S]tatutory summary suspension hearings are civil in

nature and, thus, *** are separate and distinct from a criminal

action for DUI." People v. O'Connor, 313 Ill. App. 3d 134, 136,

728 N.E.2d 1175, 1177 (2000). For that reason, "[t]he dismissal

of a criminal charge does not result in an automatic rescission

of the suspension." (Emphasis in original.) People v. Schaefer,

154 Ill. 2d 250, 257-58, 609 N.E.2d 329, 332 (1993).

Defendant argues that the appeal from the rescission of

the summary suspension "should [also] be dismissed because it is

a violation of the plea agreement," under which the State agreed

to dismiss case No. 06-DT-1. As we have explained, the dismissal

of the DUI charge in case No. 06-DT-1 had no effect on the

summary suspension, which was a separate civil proceeding.

Therefore, an agreement to dismiss the DUI charge would not

reasonably imply a rescission of the statutory suspension. "If

disputed, the terms of the [plea] agreement are to be judged

under objective standards" (People v. Navarroli, 121 Ill. 2d 516,

- 19 - 521, 521 N.E.2d 891, 893 (1988)), not by a party's subjective

expectations (People v. Umfleet, 190 Ill. App. 3d 804, 811, 546

N.E.2d 1013, 1018 (1989)). The record appears to contain no

objective evidence that the State agreed to the rescission of the

summary suspension.

Whether the State agreed to the dismissal of the DUI

charge in return for defendant's guilty plea and payment of the

fine in case No. 06-TR-9 (as opposed to unilaterally nol-prossing

the DUI charge) would be a question for the trial court to

resolve should the State refile the DUI charge. See Navarroli,

121 Ill. 2d at 521-22, 521 N.E.2d at 893 (existence of a plea

agreement and its terms and conditions are questions of fact

which the trier of fact must determine; on appeal, we ask whether

the determination is against the manifest weight of the evi-

dence). For our purposes, suffice it to say the State

nol-prossed case No. 06-DT-1 (but not, thereby, the

already-concluded civil proceeding for summary suspension).

B. The Merits of the Rescission of the Summary Suspension

1. The Applicability of the Exclusionary Rule to This Civil Proceeding

In criminal cases, courts suppress evidence obtained as

a result of an unreasonable search or seizure, provided that the

causal link between the evidence and the unreasonable search or

seizure is not too attenuated. People v. Pettis, 184 Ill. App.

3d 743, 751-52, 540 N.E.2d 1097, 1103 (1989), citing Wong Sun v.

- 20 - United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S.

Ct. 407, 416-17 (1963); Immigration & Naturalization Service v.

Lopez-Mendoza, 468 U.S. 1032, 1040-41, 82 L. Ed. 2d 778, 787, 104

S. Ct. 3479, 3484 (1984). "The reach of the exclusionary rule

beyond the context of criminal prosecution, however, is less

clear." Lopez-Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787,

104 S. Ct. at 3484. Summary-suspension proceedings are, as we

have explained, "civil in nature" and "are separate and distinct

from a criminal action for DUI." O'Connor, 313 Ill. App. 3d at

136, 728 N.E.2d at 1177. When deciding whether the exclusionary

rule applies to a given civil case, the court must "weigh the

likely social benefits of excluding unlawfully seized evidence

against the likely costs." Lopez-Mendoza, 468 U.S. at 1041, 82

L. Ed. 2d at 787, 104 S. Ct. at 3484.

In the present case, neither party questions the

applicability of the exclusionary rule to a summary-suspension

proceeding. See People v. Krueger, 208 Ill. App. 3d 897, 903-04,

567 N.E.2d 717, 721 (1991) (implying a requirement into section

2-118(b) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(b)

(West 2004)) that the arrest be lawful is necessary to save the

statute from unconstitutionality). Therefore, we will proceed

under the assumption that if Dawdy's warrantless, nonconsensual

entry into Foiles's house was unreasonable, the summary suspen-

sion cannot stand.

- 21 - 2. Our Standard of Review

The parties disagree over our standard of review.

According to the State, a motion for suppression of evidence

presents a mixed question of law and fact: the trial court's

factual findings deserve deference insomuch as they are not

against the manifest weight of the evidence, but we decide de

novo whether those factual findings call for a suppression of

evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93,

100-01 (2004). Defendant concedes that, "ordinarily," we should

apply this dual standard when reviewing rulings on motions to

suppress evidence. He contends, however, that because we are

actually reviewing the granting of a motion for reconsideration,

we should use a different standard of review. He cites a First

District case for the following proposition: "'"The decision to

grant or deny a motion for reconsideration lies within the

discretion of the circuit court and will not be reversed absent

an abuse of that discretion. [Citation.]"'" Avenaim v. Lubecke,

347 Ill. App. 3d 855, 861, 807 N.E.2d 1068, 1073 (2004), quoting

Chelkova v. Southland Corp., 331 Ill. App. 3d 716, 729, 771

N.E.2d 1100, 1111 (2002). We likewise have held: "A trial

court's decision on a motion to reconsider will not be disturbed

absent abuse of discretion." Woolums v. Huss, 323 Ill. App. 3d

628, 639, 752 N.E.2d 1219, 1229 (2001); see also Weilmuenster v.

Illinois Ben Hur Construction Co., 72 Ill. App. 3d 101, 105-106,

- 22 - 390 N.E.2d 579, 582 (1979).

These cases (prescribing an abuse-of-discretion stan-

dard of review for rulings on motions for reconsideration) are

civil cases, not criminal cases--but, one must bear in mind, we

are reviewing a civil proceeding. The question, did the trial

court abuse its discretion? implies an attitude of deference. We

have stated:

"'"Abuse of discretion"' means clearly

against logic; the question is not whether

the appellate court agrees with the circuit

court, but whether the circuit court acted

arbitrarily, without employing conscientious

judgment, or whether, in view of all the

circumstances, the court exceeded the bounds

of reason and ignored recognized principles

of law so that substantial prejudice

resulted.'" Long v. Mathew, 336 Ill. App. 3d

595, 600-601, 783 N.E.2d 1076, 1080 (2003),

quoting State Farm Fire & Casualty Co. v.

Leverton, 314 Ill. App. 3d 1080, 1083, 732

N.E.2d 1094, 1096 (2000).

If our standard of review in the present case were deferential,

we would simply ask whether the court abused its discretion,

instead of using a dual standard of review as in criminal cases.

- 23 - Our mere disagreement with the court's ultimate conclusion as to

whether the evidence should be suppressed would not warrant

reversal; we would have to allow room for a reasonable difference

of opinion. Considering the United States Supreme Court's

rationale for the dual standard of review, we conclude that

deference on the ultimate question of the reasonableness of a

seizure would be undesirable even in a civil case.

In Ornelas v. United States, 517 U.S. 690, 691, 134 L.

Ed. 2d 911, 916, 116 S. Ct. 1657, 1659 (1966), the question

before the Supreme Court was whether the court of appeals had

used the correct standard when reviewing the trial court's

findings of reasonable suspicion and probable cause. The court

of appeals opined that those findings "should be reviewed 'defer-

entially,' and 'for clear error'" (Ornelas, 517 U.S. at 691, 134

L. Ed. 2d at 916, 116 S. Ct. at 1659)--a term that the Supreme

Court understood to be synonymous with an "abuse of discretion"

(Ornelas, 517 U.S. at 694 n.3, 134 L. Ed. 2d at 918 n.3, 116 S.

Ct. at 1661 n.3). The Supreme Court agreed that a reviewing

court should look with deference upon the trial court's findings

of historical fact (Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at

920, 116 S. Ct. at 1663), but, for three related reasons, the

Court prescribed a de novo standard of review for the "ultimate

determinations of reasonable suspicion and probable cause"

(Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at

- 24 - 1662). First, a "policy of sweeping deference" would allow trial

courts to draw opposite conclusions as to probable cause on

essentially the same facts. Ornelas, 517 U.S. at 697, 134 L. Ed.

2d at 919, 116 S. Ct. at 1662. "Such varied results would be

inconsistent with the idea of a unitary system of law." Ornelas,

517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at 1662.

Second, "[i]ndependent review" enabled appellate courts "to

maintain control of, and to clarify, the legal principles."

Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at

1662. Third, "de novo review tend[ed] to unify precedent and

[would] come closer to providing law enforcement officers with a

defined '"'set of rules which, in most instances, ma[de] it

possible to reach a correct determination beforehand as to

whether an invasion of privacy [was] justified in the interest of

law enforcement.'"'" Ornelas, 517 U.S. at 697-98, 134 L. Ed. 2d

at 919-20, 116 S. Ct. at 1662, quoting New York v. Belton, 453

U.S. 454, 458, 69 L. Ed. 2d 768, 773, 101 S. Ct. 2860, 2863

(1981), quoting W. LaFave, "Case-By-Case Adjudication" versus

"Standardized Procedures": The Robinson Dilemma, 1974 S. Ct. Rev.

127, 142 (1974).

We do not see how classifying a case as "civil" rather

than "criminal" lessens the force of that threefold rationale if,

in the civil case, the appellate court is developing precedent on

the question of whether an invasion of privacy was constitution-

- 25 - ally justified. Although we normally review rulings on motions

for reconsideration for an abuse of discretion, we decline to

apply that policy of sweeping deference to this case. Instead,

we will apply the dual standard of review that the Supreme Court

prescribed in Ornelas and which our own supreme court reaffirmed

in Pitman, 211 Ill. 2d at 512-13, 813 N.E.2d at 101.

3. The Trial Court's Factual Findings, to Which We Defer

In the original order of February 24, 2006, denying

defendant's petition to rescind the summary suspension of his

driver's license, the trial court laid out the competing versions

of fact from the evidentiary hearing--defendant's version on the

one hand and Dawdy's version on the other--and found that "the

controverted facts [had to] be resolved in favor of the State."

In short, the court believed Dawdy over defendant. The State

argues we should defer to that factual determination. See People

v. Moss, 217 Ill. 2d 511, 517, 842 N.E.2d 699, 704 (2005).

Defendant does not claim that the factual findings in

the trial court's original order were against the manifest weight

of the evidence; he merely claims they were superseded. In its

order of April 5, 2006, granting defendant’s motion for reconsid-

eration, the court made no factual findings. Defendant reasons

that we must, therefore, "presume that the trial court found all

issues and controverted facts in favor of the prevailing party,

here, the defendant." People v. Lagle, 200 Ill. App. 3d 948,

- 26 - 954, 558 N.E.2d 514, 519 (1990); see also National Acceptance Co.

v. Pintura Corp., 94 Ill. App. 3d 703, 707, 418 N.E.2d 1114, 1118

(1981) ("Where as here, the judgment of the trial court is not

accompanied by findings of fact, the presumption is that the

trial court found all issues and controverted facts in favor of

the prevailing party").

When interpreting a judgment, we strive to effectuate

the trial court's intent, and, to that end, we interpret the

judgment in the context in which the court rendered it. Part of

that context is the pleading that sought the judgment. Baldi v.

Chicago Title & Trust Co., 113 Ill. App. 3d 29, 33, 446 N.E.2d

1205, 1208-09 (1983). Neither Lagle nor National Acceptance Co.

dealt with a motion for reconsideration. A party can file a

motion for reconsideration for one or more of the following

reasons: (1) to inform the trial court of newly discovered

evidence that was unavailable at the time of the original hear-

ing, (2) to alert the court to changes in the law, or (3) to

apprise the court of any errors it made in its application of

existing law. Kaiser v. MEPC American Properties, Inc., 164 Ill.

App. 3d 978, 987, 518 N.E.2d 424, 429-30 (1987). In his motion

for reconsideration, defendant presented no new evidence; he

merely argued that the court erred in its application of existing

law. Specifically, he argued that the court erred by applying

the rule of Santana to this case because, unlike the arrest in

- 27 - Santana, the one in this case had not yet "commenced" when Dawdy

followed defendant into the house. He further argued that the

warrantless, nonconsensual entry of the house was unreasonable,

given the lack of exigent circumstances. Such being defendant's

argument in his motion for reconsideration, we will not presume

that the court had an unsolicited change of mind about the

facts--that, for no apparent reason, it now chose to believe

defendant over Dawdy without bothering to say so in the record.

Instead, we infer that while adhering to its previous factual

findings, the court agreed with the legal argument that defendant

made in his motion for reconsideration, and granted the motion on

that basis. We so interpret the judgment.

4. Standing

At trial, the State stipulated that defendant had a

legitimate expectation of privacy in Foiles's residence and that

he, therefore, had standing to claim the protection of the fourth

amendment (U.S. Const., amend. IV). The stipulation is justi-

fied. See Minnesota v. Olson, 495 U.S. 91, 96-97, 109 L. Ed. 2d

85, 93, 110 S. Ct. 1684, 1688 (1990) ("Olson's status as an

overnight guest is alone enough to show that he had an expecta-

tion of privacy in the home that society is prepared to recognize

as reasonable").

5. Fleeing into a Residence After the Commencement of an Investigatory Stop

In Santana, 427 U.S. at 40, 49 L. Ed. 2d at 303, 96 S.

- 28 - Ct. at 2408, the police had probable cause to arrest Santana for

distribution of heroin. Upon arriving at her house, they saw her

standing in the doorway with a brown paper bag in her hand.

Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408.

They pulled up to within 15 feet of her and jumped out of the

van, shouting "'police'" and holding up their identification.

Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408.

Santana retreated into her house, and the officers followed her,

nabbing her in the vestibule. Santana, 427 U.S. at 40, 49 L. Ed.

2d at 304, 96 S. Ct. at 2408. As she tried to pull away from

them, packets of heroin spilled out of the bag. Santana, 427

U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408. They found

the marked money in her pocket. Santana, 427 U.S. at 41, 49 L.

Ed. 2d at 304, 96 S. Ct. at 2409. She moved to suppress the

money and heroin because the police had no warrant. Santana, 427

U.S. at 41, 49 L. Ed. 2d at 304, 96 S. Ct. at 2409.

The Supreme Court had previously held, in United States

v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976),

"that the warrantless arrest of an individual in a public place

upon probable cause did not violate the [f]ourth [a]mendment."

Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409.

Given that holding, the Supreme Court asked two questions in

Santana. The first question was "whether, when the police first

sought to arrest Santana, she was in a public place." Santana,

- 29 - 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. The

answer was yes. Standing in the threshold of her front door, she

was in a public place for purposes of the fourth amendment.

Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409.

She had no reasonable expectation of privacy in the doorway,

"exposed to public view, speech, hearing, and touch as if she had

been standing completely outside her house." Santana, 427 U.S.

at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. Thus, when the

police, on the basis of probable cause, sought to arrest her in

the open doorway, they were merely "perform[ing] a function which

[the Court] ha[d] approved in Watson." Santana, 427 U.S. at 42,

49 L. Ed. 2d at 305, 96 S. Ct. at 2409.

The second question was "whether [Santana's] act of

retreating into her house could thwart an otherwise proper

arrest." Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct.

at 2409. The answer was no. "[A] suspect may not defeat an

arrest which has been set in motion in a public place, and is

therefore proper under Watson, by the expedient of escaping to a

private place." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306, 96

S. Ct. at 2410.

Before defendant retreated into the house, Dawdy set in

motion an investigatory stop, not an arrest. Otherwise, this

case resembles Santana. Having witnessed him turn without using

a turn signal, Dawdy had probable cause to believe that defendant

- 30 - violated section 11-804(b) of the Illinois Vehicle Code (Code)

(625 ILCS 5/11-804(b) (West 2004)). For that reason alone, he

had the right to pull defendant over. See People v. Shepherd,

242 Ill. App. 3d 24, 29, 610 N.E.2d 163, 166 (1993). He also saw

defendant coast past a stop sign, an additional traffic violation

(625 ILCS 5/11-904(b) (West 2004)). He "set the stop in motion"

by turning on his flashing red and blue lights at the intersec-

tion of East Lincoln Street and Bates Avenue. Ignoring Dawdy’s

repeated commands to stop and go back into the car, defendant

walked away from him and retreated into the house, giving Dawdy

probable cause to believe that defendant had committed the

offense of fleeing or attempting to elude a police officer (625

ILCS 5/11-204(a) (West 2004)). On West Lincoln Street, defendant

swerved toward Dawdy at a high rate of speed, forcing Dawdy to

pull over to the shoulder of the street to avoid a head-on

collision. When Dawdy turned around and followed him, defendant

was still swerving. Defendant made a wide turn onto Bates Street

without using a turn signal. He failed to stop at a stop sign.

He swayed and stumbled up the sidewalk, disobeying Dawdy's

repeated orders to stop, and when he stood in the doorway (a

public place, under Santana) and more or less said, "You're out

of luck because I made it home," Dawdy smelled alcohol on his

breath. At that point, "a person of reasonable caution" would

have believed that defendant had committed DUI (People v. Sims,

- 31 - 192 Ill. 2d 592, 614, 736 N.E.2d 1048, 1060 (2000))--a belief

that defendant evidently shared. Dawdy did not know defendant's

blood alcohol level--he did not have scientific proof of intoxi-

cation--but "the evidence relied upon by the arresting officer[]

does not have to be sufficient to prove guilt beyond a reasonable

doubt"; it need not even prove that the defendant is more proba-

bly than not guilty (Sims, 192 Ill. 2d at 614-15, 763 N.E.2d at

1060). Dawdy had more than "mere suspicion." See Sims, 192 Ill.

2d at 614-15, 736 N.E.2d at 1060. While defendant was still in a

public place, Dawdy had probable cause to arrest him for attempt-

ing to elude a police officer and for DUI.

But Dawdy did not form an intent to arrest defendant

until after he followed defendant into the house. Thus, when

defendant retreated into the house, Dawdy had not, as of yet,

"set in motion" the arrest. See Santana, 427 U.S. at 43, 49 L.

Ed. 2d at 306, 96 S. Ct. at 2410. He had, however, "set in

motion" a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed.

2d 889, 88 S. Ct. 1868 (1968). Like an arrest, a Terry stop is a

seizure of the person (People v. Gonzalez, 204 Ill. 2d 220, 226,

789 N.E.2d 260, 264 (2003)); it is simply a less intrusive form

of seizure (Illinois v. Wardlow, 528 U.S. 119, 126, 145 L. Ed. 2d

570, 577, 120 S. Ct. 673, 677 (2000)).

Does this distinction between the two types of seizure

make Santana distinguishable? Defendant seems to think so but

- 32 - does not explain why. According to the Second District, the

doctrine of hot pursuit does not care whether it was a Terry stop

or an arrest that the police officer set in motion before pursu-

ing a suspect into a private place. In People v. Rivera, 233

Ill. App. 3d 69, 598 N.E.2d 423 (1992), the Aurora police had

information that cocaine was stored in the basement of the

defendant's bar, La Tropicana, and that he was trafficking in

that drug. Two police officers, Renaud and Reichardt, entered

the bar (Rivera, 233 Ill. App. 3d at 71, 598 N.E.2d at

424)--which, other than the basement, was a public place (Rivera,

233 Ill. App. 3d at 76, 598 N.E.2d at 428). They had no warrant.

Rivera, 233 Ill. App. 3d at 71, 598 N.E.2d at 424. When the

defendant saw Renaud approaching, he made a dash for the basement

door, opened it, and ran downstairs. Rivera, 233 Ill. App. 3d at

71-72, 598 N.E.2d at 425. The officers pursued him. Rivera, 233

Ill. App. 3d at 72, 598 N.E.2d at 425. The defendant ran to an

office in the basement, pushed the door open, and yelled "'po-

lice.'" Rivera, 233 Ill. App. 3d at 72, 598 N.E.2d at 425. In

the basement office, a man named Wilkinson stuffed a bag into his

mouth and would not spit it out. Rivera, 233 Ill. App. 3d at 72,

598 N.E.2d at 425. The police found a bag of cocaine in the

defendant's pocket. Rivera, 233 Ill. App. 3d at 72, 598 N.E.2d

at 425. The prior information the police had, together with the

defendant's sudden flight, provided reasonable suspicion to stop

- 33 - him pursuant to Terry. Rivera, 233 Ill. App. 3d at 77, 598

N.E.2d at 428. After reviewing authorities from other jurisdic-

tions, the Second District held as follows:

"[T]he police, in certain limited cir-

cumstances, may be authorized to make a

warrantless entry into a private premises for

the purpose of effectuating a Terry stop[,]

provided the police have a lawful basis to

stop a suspect in a public place and the

suspect reacts by suddenly fleeing to a pri-

vate sanctuary, thereby thwarting any oppor-

tunity to conduct the detention at a public

location." Rivera, 233 Ill. App. 3d at 76,

598 N.E.2d at 427.

We find Rivera to be persuasive. In fact, the State's

case here is stronger than in Rivera because when pursuing

defendant into the house, Dawdy had more than reasonable suspi-

cion for a Terry stop; he had probable cause to arrest defendant.

So this case is closer to Santana than Rivera. If, on the basis

of probable cause, Dawdy had "set in motion" an arrest of defen-

dant outside Foiles's house and then followed him inside, Santana

would have been precisely applicable. It must follow that if, in

reliance on the same probable cause, Dawdy "set in motion" a

Terry stop of defendant outside the house, he likewise could

- 34 - follow defendant inside. "The Santana analysis, which supports

the warrantless arrest of a suspect who has no legitimate expec-

tation of privacy, a fortiori allows the lesser intrusion of a

brief investigatory detention." (Emphasis in original.) United

States v. Gori, 230 F.3d 44, 53 (2d Cir. 2000). We understand

Santana to essentially stand for the following proposition: when

the police commence a reasonable seizure of a person in a public

place, that person cannot thwart the seizure by retreating into a

private place. See Edwards v. United States, 364 A.2d 1209, 1214

(D.C. App. 1976), modified en banc, Edwards v. United States, 379

A.2d 976, 979 (D.C. App. 1977).

Defendant argues "there is no indication that [he]

'fled' into the house[;] rather, the evidence showed he merely

got out of his car and walked into the house." The Supreme Court

referred to the act of "escaping to a private place." Santana,

427 U.S. at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410. We do

not see what difference it makes whether defendant sprinted,

jogged, or walked up the sidewalk to Foiles's house; Dawdy was

directly behind him, repeatedly ordering him to stop and get back

into the car, and defendant ignored those commands and went into

the house with the intent of escaping Dawdy and thwarting the

investigatory stop. See State v. Paul, 548 N.W.2d 260, 265

(Minn. 1996). "'[H]ot pursuit'" means merely "some sort of a

chase." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct.

- 35 - at 2410.

6. "Hot Pursuit" as an Exigent Circumstance Unto Itself

Defendant argues that Dawdy violated the fourth amend-

ment by arresting him inside Foiles's home because Dawdy was

aware of no "'exigent circumstances,'" within the meaning of

Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct.

1371 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d

732, 104 S. Ct. 2091 (1984), to justify his warrantless,

nonconsensual entry of the home.

In Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100

S. Ct. at 1381, the Supreme Court held that entering a home

without a warrant or consent and arresting someone therein--even

for a felony that the police had probable cause to believe the

arrestee committed--was presumptively unreasonable under the

fourth amendment, applicable to the states via the fourteenth

amendment (U.S. Const., amend. XIV) (Payton, 445 U.S. at 576, 63

L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state

could rebut this presumption of unreasonableness only by showing

"'exigent circumstances'" (Payton, 445 U.S. at 589, 63 L. Ed. 2d

at 652, 100 S. Ct. at 1381, quoting United States v. Reed, 572

F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to

"consider the sort of emergency or dangerous situation, described

in [its] cases as 'exigent circumstances,' that would justify a

warrantless entry into a home for the purpose of either arrest or

- 36 - search" (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct.

at 1378), "thereby leaving to the lower courts the initial

application of the exigent-circumstances exception" (Welsh, 466

U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097).

While no list of factors is exhaustive, our own supreme

court has set out some factors that a court may take into account

when assessing exigency in a particular situation. Those factors

are as follows:

"(1) whether the offense under investigation

was recently committed; (2) whether there was

any deliberate or unjustifiable delay by the

officers during which time a warrant could

have been obtained; (3) whether a grave of-

fense is involved, particularly one of vio-

lence; (4) whether the suspect was reasonably

believed to be armed; (5) whether the police

officers were acting upon a clear showing of

probable cause; (6) whether there was a like-

lihood that the suspect would have escaped if

not swiftly apprehended; (7) whether there

was strong reason to believe that the suspect

was on the premises; and (8) whether the

police entry, though nonconsensual, was made

peaceably." People v. Foskey, 136 Ill. 2d

- 37 - 66, 75, 554 N.E.2d 192, 197 (1990).

In Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S.

Ct. at 2093, the Supreme Court considered whether "'exigent

circumstances'" allowed the police to make "a warrantless night

entry of a person's home in order to arrest him for a nonjailable

traffic offense" of DUI. In that case, a motorist, Randy

Jablonic, saw a car changing speeds and veering side to side

until it swerved off the road and came to rest in an open field.

Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093.

Another passerby stopped at the scene, and Jablonic asked her to

call the police. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738,

104 S. Ct. at 2093-94. Before the police arrived, the driver of

the car got out and walked home, leaving the car in the field.

Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094.

Without obtaining a warrant, the police entered the driver's

home, found him lying naked in bed, and arrested him for DUI.

Welsh, 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at

2094. The Supreme Court held that the "warrantless, nighttime

entry into the petitioner's home to arrest him for a civil

traffic offense" was "clearly prohibited by the special

protection afforded the individual in his home by the [f]ourth

[a]mendment." Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104

S. Ct. at 2100.

"[A]n important factor to be considered when

- 38 - determining whether any exigency exist[ed] [was] the gravity of

the underlying offense for which the arrest [was] being made."

Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.

Under Wisconsin law, no incarceration was possible for a first

offense of DUI. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104

S. Ct. at 2100. The State claimed a potential emergency in the

need to ascertain the driver's blood alcohol level. Welsh, 466

U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But

considering that Wisconsin had "chosen to limit severely the

penalties that [could] be imposed" (Welsh, 466 U.S. at 754 n.14,

80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby

designating the offense as a minor one, "mere similarity to other

cases involving the imminent destruction of evidence [was] not

sufficient" (Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S.

Ct. at 2100).

Unlike the state of Wisconsin in Welsh, Illinois does

not limit the penalties for a first DUI: it is a Class A

misdemeanor (625 ILCS 5/11-501(b-2) (West 2004)), punishable by

imprisonment for up to 364 days (730 ILCS 5/5-8-3 (West 2004)).

Fleeing or attempting to elude a police officer also is a Class A

misdemeanor. 625 ILCS 5/11-204(a) (West 2004). Because Dawdy

had probable cause to effect a seizure of the person for jailable

offenses, Welsh is distinguishable. More important, Welsh was

not a case of hot pursuit, as the Supreme Court pointed out.

- 39 - Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.

We need not decide whether the factors in Foskey

justify, on balance, Dawdy's warrantless, nonconsensual entry of

Foiles's home; Dawdy was in hot pursuit of defendant and, for

that reason alone, had the right to enter the house and arrest

him. It appears that the majority of jurisdictions that have

considered this question would so hold. D. Gilsinger,

Annotation, When Is Warrantless Entry of House or Other Building

Justified Under "Hot Pursuit" Doctrine, 17 A.L.R.6th 327, §§12,

14 (2006).

According to defendant, "the law is clear that hot

pursuit is not itself an exigent circumstance or exception to the

warrant requirement, but merely one factor to consider." He

cites Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which

the Fifth District disagreed with the State’s contention "that

'hot pursuit' [was] an exception to the warrant requirement

separate and distinct from the exigent[-]circumstances

exception." The Fifth District stated:

"The cases do not discuss a separate hot

pursuit exception to the warrant requirement,

but discuss it within the context of

discussing exigent circumstances. Hot

pursuit is merely one factor to be considered

in determining whether exigent circumstances

- 40 - justified a warrantless home entry. See

Dorman v. United States (1969), 435 F.2d 385,

391 ('Another doctrine excusing failure to

obtain a warrant in case of entry for arrest

has been cast in terms of "exigent

circumstances," or "necessitous

circumstances." While some decisions also

refer to condition of "hot pursuit," this

term is not a limitation but rather an

illustration of the kind of exigent

circumstance justifying entry without a

warrant to arrest a suspect')." Lagle, 200

Ill. App. 3d at 955, 558 N.E.2d at 519.

In its holding in Santana, the Supreme Court did not

refer to hot pursuit as only one factor among others. Although

the Court remarked upon the possibility of destruction of

evidence, its final, unqualified holding was as follows: "[A]

suspect may not defeat an arrest which has been set in motion in

a public place, and is therefore proper under Watson, by the

expedient of escaping to a private place." Santana, 427 U.S. at

43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not

add the qualification "provided that other factors" (such as

those listed in Foskey) "are satisfied." Most courts appear to

take Santana's holding at face value, treating hot pursuit as an

- 41 - exception unto itself rather than as just another factor. E.g.,

People v. Tillman, 355 Ill. App. 3d 194, 198, 823 N.E.2d 117,

121-22 (2005), appeal denied, 215 Ill. 2d 616, 833 N.E.2d 8

(2005); People v. Wimbley, 314 Ill. App. 3d 18, 25, 731 N.E.2d

290, 295 (2000) ("Courts have also found exigent circumstances

where police are in 'hot pursuit' of a suspect who flees from a

public place into his residence"); State v. Blake, 468 N.E.2d

548, 553 (Ind. App. 1984) ("immediate and continuous pursuit from

the scene of the crime formed the exigent circumstance"); People

v. Lloyd, 216 Cal. App. 3d 1425, 1429, 265 Cal. Rptr. 422, 425

(1989) ("the officer's 'hot pursuit' into the house to prevent

the suspect from frustrating the arrest which had been set in

motion in a public place constitutes a proper exception to the

warrant requirement").

Hot pursuit, as an exception unto itself, appears to

have deep roots in 17th- and 18th-century English common law.

Payton, 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386.

Hale stated: "[I]f the supposed offender fly and take house, and

the door will not be opened upon demand of the constable and

notification of his business, the constable may break the door,

tho[ugh] he have no warrant." 2 M. Hale, Pleas of the Crown 92

(1736), quoted in Payton, 445 U.S. at 595 n.41, 63 L. Ed. 2d at

656 n.41, 100 S. Ct. at 1385 n.41.

One court has explained:

- 42 - "Hot pursuit situations have a policy

basis distinct from other exigent

circumstances in that they involve arrests

that have already been set in motion. Logic

dictates that, regardless of the gravity of

the offense, an individual should not be able

to avoid an otherwise lawful warrantless

arrest merely by outracing the police

officers into the individual's dwelling."

Erickson v. Commissioner of Public Safety,

No. C2-92-507, slip op. at ___ (Minn. App.

August 25, 1992).

Under Minnesota law, this unpublished opinion is "not

precedential," but parties are permitted to cite it (Minn. Stat.

§480A.08(3) (2004)), and we find its logic to be persuasive.

Thus, we respectfully disagree with the Fifth

District's discussion of the doctrine of hot pursuit in Lagle.

Moreover, we are uncertain that the language the Fifth District

quotes from Dorman actually supports the proposition that the

Fifth District draws from it: just because one characterizes hot

pursuit as an "exigent circumstance," it does not necessarily

follow that hot pursuit is "merely one factor" among others.

When defendant repeatedly ignored Dawdy's commands to

stop and tried to elude him by going (or, rather, staggering)

- 43 - into Foiles's house, reasonable suspicion ripened into probable

cause, and the fourth amendment did not require Dawdy to simply

shrug his shoulders and go obtain a warrant. Apparently,

defendant thought the enforcement of traffic laws resembled a

children's game of tag, whereby Dawdy was "it" and defendant was

"safe" if he reached "home" before Dawdy apprehended him. See

United States v. Schmidt, 403 F.3d 1009, 1014 (8th Cir. 2005).

As Santana teaches, the fourth amendment does not contemplate

this game.

III. CONCLUSION

Because the State nol-prossed the criminal DUI case, we

dismiss this appeal in part insomuch as it pertains to the

suppression of evidence and quashing of the arrest. We reverse

the trial court’s rescission of the summary suspension of

defendant’s driver’s license.

Dismissed in part and reversed in part.

STEIGMANN, P.J., and COOK, J., concur.

- 44 -